The challenges of medical negligence from a legal viewpoint

Since the dawn of the 90’s and till nowadays the majority of representatives of medical specialties and insurance companies have repeatedly stated that healthcare enters a crisis as for medical malpractice lawsuits, as evidenced by the sharply increased amount of compensations awarded by the court, and the price of insurance policies at various levels. Thus, according to solicitors.guru, a prominent provider of legal services, running a huge database of medical negligence solicitors, the country’s budget expenditures associated with medical negligence account for £790ml. annually.

As a result, even some US states have enacted laws that restrict the amount of claims, compensations for lawyers and limitation periods within which the victims of negligence are entitled to sue the defendant. In addition, some states a mandatory insurance of doctors was introduced, as well as the established the procedure for the consideration of claims in arbitration before a claim can be submitted to the jury. Furthermore, the reduction of the compensation amount for ‘physical pain and suffering’ are actively discussed. It should be noted that certain proposals for reform in the area of medical malpractice lawsuits are usually discussed during the pre-election political campaigns in the aspects of the desire of gaining votes, and the current presidential election campaign.

Neither legislators nor the medical staff nor the patients have no doubt that the issues arising in connection with the resolution of medical malpractice disputes, are the most sophisticated in the law enforcement practice. This is because on the one hand the complicated nature of medicine and absolute uniqueness of each contentious case, and on the other hand the insufficiency of regulatory guidelines for medical practice. Taking into account the specificity of medical practice, it is virtually impossible to reflect all the standards in the acts of the legislative level. It is impossible to imagine a detailed description of medical procedures in the text of the law the area is so complicated and diverse that the mission seems to be impossible to implement.

Therefore, some other than the ‘technical’ level solution is required, some regulation on the sub-legal level. In other branches of human activity, for example in international trade or maritime transport, in the absence of legal regulation (i.e. rules, writing laid down by law) the terms have been developed for centuries in business practices that made up the unresolved legal niche. Despite the unwritten nature of these practices, they are the rules of law. In medicine, the role of such customs, ‘technology’ regulators, should be carried out by methodical recommendations, national standards, forms of diagnosis and treatment.

International experience suggests that standardisation of medical practice is not only giving real help to the courts in resolving medical malpractice disputes, but also provides an effective impact on the quality of medical care in the country, regardless of the legal status of standards and forms, different from country to country (they can be either mandatory or advisory).